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TMI Blog2021 (5) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... hin fifteen days, hence these decisions are distinguishable and not applicable. In the facts and circumstances of this case there is failure on the part of the customs officer, by not following the laid down Customs procedure, particularly procedure of assessment as laid down. They have orally denied to pass an order of provisional assessment and have further used undue influence and have practically compelled the respondent importer to agree to dictates and agree for enhancement of the declared value, trying to giving total go by to the provisions of Section 17(4) read with 17(5) of the Act. The respondent importer is entitled to consequential benefit, if any, in accordance with law - Appeal dismissed. - Customs Appeal No. 52124-52127 of 2019 with Customs Stay No. 50727-50730 of 2019 - FINAL ORDER Nos. 50869 – 50872/2020 - Dated:- 21-10-2020 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. C. L. MAHAR, MEMBER (TECHNICAL) Shri Rakesh Kumar, Authorised Representative for the appellant Shri Abhishek Jaju, Advocate for the respondent ORDER The issue in these appeals by Revenue is whether the enhancement of value of the imported goods on the basis of NID ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed Order-in-appeal No. CC(A)/CUS/ D-II/ ICD-PPG-PIYALA/178-181/2019-20/706 dated 24.05.2019. Vide the impugned order the Commissioner of Customs (Appeals) set aside re-assessment of goods at enhanced value and restored the assessment at the declared value and allowed all 04 appeals filed by the importer. The appeals were allowed mainly on the following four points:- (A) That acceptance of enhanced value proposed by the Department during re-assessment was to save demurrage by the appellant. This does not preclude him from challenging the enhancement of value by way of appeal; that it is settled legal proposition that there is no estoppel in taxation matters. (B) That uniform enhancement of value by the assessing officer on sole reliance of NIDB prices is not legally sustainable. (C) That there is no mention in the orders as to what was the contemporaneous import data, of which port, which period, quantity, etc. By just boldly asserting that NIDB/ contemporaneous prices were shown to the appellant, does not obviate the requirement of specifying such cogent evidence in the order itself. (D) That the assessing authority was required to pass a speaking order, disclosing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scription of imported goods was same, uniform enhancement of value of the goods was obvious. In some cases, enhancement of value is different. More importantly, value enhancement was duly accepted by the importer and the right of show cause notice/ assessment order was willingly relinquished. 4.3 Although the import data has not been discussed in the assessment, but it is an admitted fact that the same was shown to the importer who had duly accepted it. The importer has not disputed this fact either at the assessment or at appeal stage that he was not shown the contemporaneous import data. Moreover, the Commissioner (Appeals) could have called for the import data at the time of hearing/ deciding the appeal. 4.4 In para 5.13 of impugned order in appeal, the Commissioner (Appeals) has mentioned that in case of VSM Impex Pvt. Ltd. the Tribunal vide their Final Order No. 63455 63456/2018 dated 25.10.2018 has dismissed the appeals filed by the Revenue on the issue of enhancement of value of fabrics. The Commissioner (Appeals) has failed to appreciate that the department has filed an appeal against the Tribunal s final order dated 25.10.2018 in the Supreme Court vide diary No. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, without showing any protest. 4.7 On being shown the contemporaneous import data of Bill of Entry No. 2132821 dt. 20.02.2019, 2065121 dt. 15.02.19, 2132808 dt. 20.02.19, 2056567 dt. 14.02.19 etc., the importer accepted that value declared by them is low and confirmed the same in his voluntary declaration letters (copies enclosed in paper book). As per Section 17 (5), proper officer need not issue speaking order in cases where the importer confirms his acceptance of re-assessment in writing, as Section 17 (5) reads:- Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter in cases other that those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. 4.8 It implies that before final assessment of the Bills of Entry under Section 47, the party preferred to revise the declared value of $1.03 per Kg to $ 1.94 per Kg or Mtr and $0.11 per Mtr to $0.16 per Mtr. in their vol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable in the present matter wherein it has been held that the appellant s acceptance of enhanced value proposed by the Department during assessment and clearance to save demurrage, does not preclude the appellant from challenging the enhancement by way of appeal, as there cannot be an estoppels against law in tax matters. The respondents in this matter wish to place reliance on: i. Marquee Enterprises vs. CC (Prev.) Amritsar 2015 (329) ELT 307 (T) ii. CC, Delhi vs. Maruti Fabric Impex 2016 (343) ELT 963 (T) iii. UoI vs. Mahindra Mahindra Ltd. 1995 (76) ELT 481 (SC) iv. Eicher Tractors Ltd. vs. CC, Mumbai 2000 (122) ELT 321 (SC) 7. It is further urged that no speaking order was passed by the Assessing authority as provided under Section 17(5), causing prejudice including denial of statutory right of the importer. Ld. Counsel further draws our attention to Section 17(4) of the Act which provides that where it is found on verification, examination on testing of the goods or otherwise, that the self assessment is not done correctly, the proper Officer may, without prejudice to any other action which may be taken under the Act, reassess the duty levia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue can be rejected on the basis of reasonable and cogent evidence only and Revenue should discharge the heavy burden to prove that invoice value does not represent the true transaction value of the imported goods. Ld. Counsel relies on the ruling of Coordinate Bench of this Tribunal in CC, ICD, New Delhi vs. M/s VSM Impex Pvt. Ltd. being Final Order No. 63455 6345/2018 dated 25.10.2018 by Chandigarh Bench. 10. Having considered the rival contentions and after perusal of the records, we find that the issue here is no longer res-integra. Under similar facts and circumstances on import of similar goods by the M/s VSM Impex Pvt. Ltd., this Tribunal referring to Section 17(5) read with Section 17(4), concluded that the adjudicating authority is required to pass a speaking order within fifteen days of the re-assessment of the Bills of Entry. Section 17(5) does not make any whisper that the assessee/ importer is required to make a request or to seek an order under Section 17(5) of the Act. Further, this Tribunal observed that the reliance placed by Revenue on the ruling of Advanced Scan Support Technologies vs. CC, Jodhpur- 2015 (326) ELT 185 (Tri. Delhi) and Vikas Spinners vs. CC, L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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